The State of Exception

The crazier ranks of the American Left and Right converge in several ways. The bad habit of namecalling their opponents Nazis, with no real reason, is one of them (only the Right uses “Communist” as a witch charge, but both use “Nazi”). George Bush II isn’t a Nazi, and neither is President Obama, who is also, for what it’s worth, not a Communist by any stretch of the political imagination.

But that kind of noise can too easily mislead us into assuming that certain 20th-century political developments, which appeared in high relief in totalitarian systems, aren’t in fact part of the State apparatus in the Western countries which like to call themselves democratic. Of course, we do not have a single Party existing alongside the State in supposedly indispensable symbiosis, controlling it until transition to utopia is accomplished, which was the form of both Nazi Germany and the USSR. But we do have a State defining itself as world hegemon, and dedicated not simply to the national and temporal common good, but rather, to a proposition of global and utopian proportions: bringing about the “end of history,” as foretold by a recently fashionable court astrologer. And this is to be effected by “regime change” and imposition of “democracy.”

Part of what follows from this is that the new sovereign, because of its pseudo-divine mission of bringing about the end of history, transcends the order of international law. This is expressed in the quasi-legal principle of “American exceptionalism,” which means precisely that the US is not bound by norms of international law, though it officially likes most of them and most definitely regards others as bound by them, with itself as arbiter of observance or transgression. But if the hegemon is not bound by international law, then that law is in effect suspended: an emergency state.

Carl Schmitt, who provided the Nazi regime with legal justification for its power grab – legal justification it didn’t really care much about anyway, given the outlaw nature of the régime – described with uncanny clarity the mechanisms by which the State ventures into tyranny or transforms into one entirely. One of these is the suspension of law in the name of emergency. This tactic has an old history. In recent times, the agents of the French Revolution, acting in the name of uniform rights, denied French people that very thing and created a pseudo-apocalyptic situation where distinction between the People and the Enemies of the People was an arbitrary one, decidable only by the terrorist rulers. Later, Nazi Germany turned on its Jewish citizens uniquely, but also on others, and in the name of the “folk” negated the rights of its citizens in principle and, in the case of targeted groups, in horrible fact. It did this with unprecedented efficiency, and therein lies the awful difference between 20th-century versions of State terror and earlier models.

These techniques should have been left in the rubble of the tyrannies, but, as Tolkien’s fable reminds us, the tools of dark power are almost never left alone by the ambitious.

We ought to be both gravely concerned and, at the same time, totally unsurprised, that the American Presidency, having already more or less openly declared its sovereignty over and above international law (breaching the foundational principle to which the Founders appealed in their case against George III), now extends the state of exception to its own citizens. We have seen this with the creation of extra-legal camps such as Guantánamo, and there are of course many others less visible, in which American citizens have been indefinitely detained and handed over to military tribunals. And now, the State threatens to reserve the right to use the new drone weaponry – itself merely a miniaturization of the air power which the US has relied on since the ’40s, and which commonly violated jus in bello – against American citizens on American soil.

The question isn’t simply one of possible abuses. It is rather, as Sen. Paul declared in his heroic filibuster yesterday, a matter of the use itself violating the Constitution. What the Obama Administration is exploring is not simply the use of a weapon in situations where deadly force is already legally warranted. The rules for that are clearly defined. What it is exploring is rather the “right” to assassinate citizens in any situation due to a standing suspension of the Constitution in the “war on terror.” Raison d’État is then the only real law. That this would be tyranny is self-evident.

It is easy to be distracted and misled by the media exhibition of the singular and grotesque museum piece of North Korea into thinking that totalitarian principles are nearly extinct, through régime change, surviving only in the DPRK until that starves itself out of existence. But that would be a very grave mistake. There are indeed other, much more supple, much less choreographed, much more sophisticated sorts of totalitarianism, the sorts which don’t feel, on the ground, much like totalitarianism at all. Right up until one hears the humming of the drone for just a moment, and then hears no more. According to Eric Holder, there’s nothing for most of us to worry about: such cases would always be exceptional.